The Emerging Redefinition of FAPE: Implications for School Districts

1. The Emerging Redefinition of FAPE: Implications for School Districts Mitchell L. Yell, Ph.D. myell@sc.edu http://mitchyell@wikispaces.com University of South Carolina Urban Special Education Leadership Collaborative October 22, 2009

2. What I Will Do Today Define a free appropriate public education Review Board of Education v. Rowley, 1982 Review the redefinition of FAPE in IDEA 1997 and the IDEIA of 2004 Discuss how LEAs can ensure that school-based teams develop educationally meaningful and legally correct IEPs

3. Free Appropriate Public Education FAPE is a right that must be made available to all eligible students with disabilities A FAPE consists of special education and related services that are provided in conformity with the IEP

4. The Definition of FAPE Free: At no cost to parents Public: Meets public school standards Appropriate: Confers meaningful educational benefit Education: Broadly construed and includes social, emotional, vocational, academic, language, functional, physical and independent living skills, and more

5. Board of Education v. Rowley458,U.S. 176 (1982) Amy Rowley was a child who was deaf and whose parents sought a sign-language interpreter in her first grade classroom The primary issue in the Supreme Court was whether the interpreter was needed to provide Amy with a FAPE

6. FAPE requirement is satisfied “We hold that the state satisfies the FAPE requirement by providing personalized instruction with sufficient support services to permit the child to benefit educational from that instruction” Rowley p. 203-204

7. The Rowley Twofold Inquiry • Has the state complied with the procedures in the act? • Amy’s school passed the procedural test • Is the IEP reasonably calculated to enable the child to receive educational benefits? • Amy was passing from grade to grade

8. Two main aspects of IEPs Procedural: Did everyone follow the rules for developing and implementing the IEP? Substantive: Does the content of the IEP confer meaningful educational benefit?

9. Problem with Rowley • Amy Rowley’s achievement status allowed the high court to sidestep prong two of the test • The substantive standard • The FAPE standard is satisfied when a school is following procedural requirements and writes an IEP that confers educational benefit

10. Post Rowley Decisions • Post Rowley courts have struggled with the question of how much benefit is needed • 1st circuit court required “demonstrable improvement” • 2nd circuit court required “meaningful academic and social progress” • 3rd, 4th, & 5th circuit courts held that the standard is “meaningful progress” not trivial progress • 6th circuit court held that an IEP must confer “meaningful educational benefit” relative to the child’s potential and it must focus on goals of self-sufficiency • 11th circuit court required measurable and adequate gains in the classroom (although not across settings)

11. The legal standards in the post-Rowley decisions have varied, however most courts have examined a student’s IEP and decided that trivial progress toward his or her IEP goals is insufficient and that progress should be meaningful or satisfactory. Huefner, 2008

12. The Redefinition of FAPE in IDEA 1997 & IDEIA 2004

13. Changes in Special Education Law Issues of Access • The Education for All Handicapped Children Act (EAHCA) of 1975 • The Individuals with Disabilities Education Act (IDEA) of 1990 • The Individuals with Disabilities Education Act Amendments of 1997 • The Individuals with Disabilities Education Improvement Act (IDEIA) of 2004 Issues of Quality

14. The Individuals with Disabilities Education Act Amendments of 1997

15. IDEA 1997 • The underlying theme of 1997 reauthorizations was to improve the effectiveness of special education by requiring demonstrable improvements in the educational achievement and functional performance of students with disabilities • Write measurable annual goals • Explaining how they will be measured, • Measure them (progress monitoring), • Report the results to parents • The IDEA ‘97 the IEP became a tool for measuring the effectiveness of special education services

16. Judicial Decisions after IDEA 1997 • Following the IDEA reauthorization of 1997 some legal scholars believed the Rowley standard was too low • Some courts continued to rely on Rowley, although some courts reasoned that educational benefit should produce “significant learning” and that assessments of student progress should inform FAPE decisions • The 3rd & 6th circuit courts held that a student’s academic potential must be considered in determining educational benefit

17. The Individuals with Disabilities Education Improvement Act of 2004

18. Congressional Findings • The IDEA had been successful in ensuring that children with disabilities and the families of such children access to a free appropriate public education, however, implementation of the law has been “impeded by low expectations and an insufficient focus on applying replicable research on proven methods of teaching and learning for children with disabilities” (20 U.S.C. § 1401(c)(3).)

19. Congressional Findings • “Improving educational results for children with disabilities is an essential element of our national policy of ensuring equality of opportunity, full participation, independent living, and economic self-sufficiency for individuals with disabilities” (20 U.S.C. § 1401(c)(1)).

20. Congressional Findings • The primary purposes of Congress in the reauthorizations of the IDEA in 1997 and 2004 were to “ensure that educators and parents have the necessary tools to improve educational results for children with disabilities” and “to assess, and ensure the effectiveness of, efforts to educate children with disabilities” (20 U.S.C. § 1401(d)(3,4)).

21. Comments to IDEIA Regulations The requirements of IDEIA “emphasize the importance of using high-quality, research-based instruction in special education settings consistent with (NCLB)” (p.32) This system will require evidence in the form of data-based documentation reflecting formal assessment of progressduring instruction through repeated assessments” (p. 32) 21

22. The Procedural & Substantive • Theoretically, procedural requirements support and compel substantive quality, but often procedural compliance just means that the paperwork is in order. • According to the President’s Commission on Excellence (2001) in special education, educators are sometimes so concerned about compliance and litigation that they lose sight of the goal of special education, which is to improve educational results for students with disabilities.

23. Substantive Requirements • Developing special education programs that confer meaningful educational benefit • A student’s program should result in him or her making measurable progress

24. The Big Question: How can we ensure that our IEPs confer meaningful educational benefit?

25. Answer: Conduct relevant assessments that inform instruction, Develop meaningful and measurable goals, Adopt data based progress monitoring systems Monitor student progress & react to this information

26. The Results: Educationally Meaningful and Legally Correct IEPs

27. IEP Development “Sadly most IEPs are horrendously burdensome to teachers and nearly useless to parents. Many, if not most, goals and objectives can’t be measured and all too often no effort is made to actually assess the child’s progress toward the goal.” Bateman & Linden, 2006

28. The IEP Process Step 1: Present Levels of Academic Achievement & Functional Performance Step 2: Measurable Annual Goals Step 3: Special Education Services Step 4: Progress Monitoring

29. The Four IEP Questions • What are the student’s unique educational needs that must be considered in developing the individualized program? • What goals will enable the student to achieve meaningful educational benefit? • What services will we provide to the student to address each of his or her educational needs? • How will we monitor the student’s progress to determine if the instructional program is effective

30. Step 1: Write the Present Levels of Academic Achievement and Functional Performance Statement

31. How Important is the PLAAFP? • Larson v. I.S.D #361 (40 IDELR 231, D. MN, 2004) • An IEP was declared invalid because the present levels statements contained only conclusory and general statements, which lead to vague, unmeasurable goals • Board of Education of the Rhinebeck Central School District (39 IDELR 148, NY, 2003) • “Two years of the student’s IEPs were deficient in that they lacked objective data in the student’s present levels of performance statement…which resulted in an inadequate basis upon which to measure (the student’s) progress and to develop meaningful, measurable goals.” • The entire IEP is based on the present levels statements

32. What is Required? • The PLAAFP must be a clear, understandable, & precise statement that: • Leads directly to measurable annual goals • Describes how the student’s disability affects educational performance • Explains how the student’s disability affects his or her participation in general education • Leads to a measurable annual goal, special education service, or both

33. Step 2: Develop the measurable annual goals

34. The annual goals are (a) what we expect the student to learn or be able to do, and (b) how we will know when they have learned it or can do it

35. When writing goals the team must ask:If we provide a meaningful educational program, what improvements or gains can the student reasonably be expected to make in one year?

36. How Important are the Goals? • Rio Rancho Public Schools (40 IDELR 140, NM,2003) • “The purpose of measurable goals is to enable the child’s teacher(s), parents, and others to gauge how well the child is progressing toward achieving the goal…This information allows the IEP team to determine whether a child is making adequate progress, and, if not, to revise the child’s program accordingly.” • “Measurable goals are critical to planning and implementing an IEP.”

37. How Important are the Goals? • Measurable goals must provide a mechanism for determining whether the special education services are enabling a student to make educational progress (Escambia, SEA AL, 2004) • Measurable goals allow the IEP team to determine whether a student is making adequate progress and, if not, to revise the educational program accordingly (Rio Rancho, SEA NM, 2003)

38. Writing Measurable Annual Goals Three components of a measurable goal • Target behavior (What we want to change) • Stimulus material or conditions (How we will measure change, sometimes called the “Given”) • Criterion for acceptable performance (How we will know if the goal has been achieved)

39. Step 3: Determine the Special Education Services

40. The service statements are what the LEA will do to help a student meet his or her goals

41. Programming Requirements • Special education programming consists of: • Special education services • Related services • Supplementary services • Program modifications • Special education services must be based on “peer-reviewed research” • The program must be designed to confer “meaningful educational benefit”

42. Peer-Reviewed Research IEPs must include ”a statement of special education servicesand related services and supplementary aids and services based on peer reviewed research to the extent practicable… [IDEIA, 20 U.S.C. § 1414(d)(1)(A)(i)(IV)]

43. What is Required? • Special education service statements should • Be based on peer-reviewed research, • Be linked to the PLAAFP statement and the annual goals • Describe the frequency, location, and duration of the specific services

44. Step 4: Monitor the Student’s Progress

45. “A measurable goal that is not measured is 100% useless”Dr. Barbara Bateman, 2007

46. Progress Monitoring • Measuring student’s progress toward a goal (formative evaluation) • Reporting a student’s progress to his or her parents (reporting schedule) • Revising the special education program if the student is not making progress

47. How Important is Progress Monitoring? • Escambia County Public School System (24 IDELR 248, 2004) • “Frequent reviews of progress toward the goals provides the student’s teacher with supportive data needed to make a determination of the success of the services provided. Without such data these critical decisions cannot be made.”

48. How about using Teacher Observation to Monitor Progress? • Board of Education of the Rhinebeck Central School District (39 IDELR 148, 2003) • “Although subjective teacher observation provides valuable information, teacher observation is not an adequate method of monitoring student progress.” • “Without supporting data, teacher observation is opinion which cannot be verified.”

49. If a student progress is not is not monitored, the IEP team cannot (a) track the success of instruction, (b) make necessary instructional changes when the student is not progressing, (c) prove that the IEP confers meaningful educational benefit

50. Important Things About Data • Data are numbers, not words • Data must be valid & reliable • Data collection must be inexpensive • Data collection must be easy & efficient